3rd. That the author of the act, under the circumstances in which he found himself, should have been able to avoid doing the injury in question, by using the precautions which every one is bound to use in performing any act. "Ignoscendum enim si non divinavit." L. 29. § 2. D. mand. (17. 1). L. 31 i. f. D. ad L. Aq. "Quodsi nullum iter erit, dolum dumtaxat praestare debet, ne immittat in eum, quem viderit transeuntem; nam culpa ab eo exigenda non est, cum divinare non potuerit, an per eum locum aliquis transiturus sit.".

§ 75. OF FAULT, OR CULPABILITY. (CULPA).

When the conditions already described were jointly realised, the author of the injurious act or omission was in fault,

blame,

(culpa)1),

or to

in the extended sense of those words:

that is to say, his volition embodied all the elements necessary to cause him to be regarded as the cause of an attack upon the rights of another, and responsible for the injury unjustly suffered by the latter. But here arises a distinction. It might be 1st., that the author of the illegal act was conscious of the wrong that he committed; which was the case if he had deliberately committed the act, or caused the omission, which attacked the rights of another; no matter what might be his motive or his purpose 2), nor whether the injurious act was for him an end

1) It is in this sense that one says of husband and wife: tium fit culpa mariti." Ulpianus, VI, § 10.

"culpa divertere, divor

2) The desire to enrich himself was not necessary. He who stole with the intention of giving in alms that which he had stolen, was not, for that, the less guilty of theft. L. 54, § 1. D. de furt. (47. 2). Whether t read "etsi quis usum alienae rei in suum usum non convertat, or usum non suae rei in alienum lucrum convertat." See Petri Execeptiones in the work of Savigny, Geschichte des Röm. Rechts im Mittelalter, T. 2, p. 159 and p. 371. The Basilica and the scholia Basilicorum howmaintain the vulgar text. The motive was not considered, except in so far, that sometimes, instead of the actio doli, (a degrading prosecution) the actio in factum was

ever,

or a means 1). In this case there was a wrongful purpose,

But, it might also be: 2nd. That the injustice consisted in the fact that, without exactly having in view the violation of another's rights, or without having foreseen the injurious effect of the act performed, the author of it had failed to make the effort of volition, to give the attention, or to employ the skill, which would have prevented the injury. In this case, in contradistinction to malice, there was, either in faciendo 2), or in non faciendo 3), fault, culpability, (culpa), in the limited sense of the word 4).

§ 76. OF DEGREES OF FAULT 5).

Every unjust infringement of the rights of another, — whether it was the result of malice, or of negligence, obliged its author to repair the injury which he had inflicted, so far as there existed, between him and the person injured, no ante

permitted. L. 7, § 7. D. de dol. (4. 3). L. 7. pr. D. dep. (16. 3). L. 8, § 10. D. mand. (17. 1). Windscheid, § 101, note 6. Wächter, II, p. 780. The latter observes, very justly, that this merely formal modification has no practical interest in connection with the law of the present day.

1) Thus then there is malice (dol) on the part of him, who to shorten his road, crosses the field of another and tramples the corn. Unger, § 101, note 6.

2) The Germans call it "die Aquilische culpa".

3) L. 91. pr. D. de V. O. (45. 1). L. 1. pr. D. de tut. et rat. distr. (27. 3).

4) Unger, 1. c. p. 236. "In case of malice the author of the violation of right has positively intended it: in case of fault he has not intended it; but as his will has lacked the energy required to avoid it, it is right to say, that it is not seriously that be has "not intended it". As, moreover, the consciousness of the injustice committed is an essential element of malice, (dolus), it follows that malice cannot exist, from the moment that one falls, in this respect, into an error of either law or fact. L. 3. § 4. D. de injur. (47. 10). L. 46. § 7. D. de furt. (47. 2). "Malicc, says Savigny, (Syst. III, p. 388), is a thing which cannot co-exist with an error, of no matter what nature."

5) Malice (dolus) has no degrees, in private law. Unger, § 102.

rior legal obligation; and that thus the wrong came within the terms of the Lex Aquilia. (§ 3. I. de leq. Aq. (4. 3). “Non minus ex dolo, quam ex culpa quisque hac lege tenetur." L. 44. pr. D. ad. leg. Aq. (q. 2). "In lege aquiliâ et levissima culpa venit."

But he who was engaged with another in some matter of obligation, especially if resulting from an agreement or contract, or what was assimilated to it - was also bound to take certain precautions, the neglect of which, whether resulting in an act or in an omission, was imputable as a fault. In this case, however the measure of the care to be taken was not every where the same; and it depended chiefly upon the nature of the legal relations between the parties, whether the fault or the negligence committed was or was not legally imputable to its author. For this reason the Roman Law 1) established in these matters two degrees of fault: the grave or serious fault and the slight fault. (Culpa lata, culpa levis.)

There was grave fault (culpa lata) where one neglected the measures of precaution that every man habitually takes, under ordinary circumstances, and with due regard to the manners, the usages or the peculiarities of the place where the act is done. (L. 213. § 2. D. de V. S. "Lata culpa est nimia negligentia; id est: non intelligere quod omnes intellignnt." L. 223. pr. D. eod. "Latae culpae finis est, non intelligere id quod omnes intelligunt.)" But there was, also, grave fault, where, being under obligation

die Culpa des Römischen For the history

1) The chief work on this subject is that of Hasse: Rechts, 1815: second edition by von Bethmann-Hollweg, 1838. of the theory of degrees of fault, in modern times, see Unger, § 101, note 5. The Prussian Law, (P. I, Tit. 3, § 18-22), conformably to the ideas in vogue at the time of its promulgation, defines three degrees: The heavy, the ordinary, and the light fault. (Ein grobes, mässiges, geringes Versehen). See Koch, ad h. 1. It is otherwise with the Austrian Code, (see Unger, 1. c.). The French Code, (see Marcadé, t. IV, p. 410), and the Dutch Code (art. 1271, 1392, 1596, no. 1, 1793, 1781: "Like a good father of a family, the same care which he gives to the preservation of his own goods". See, on this subject, the remarkable dissertation of Mr. P. R. Feith, "Over de Culpa in de verbintenissen" (of fault respecting obligations). Amsterdam, 1859. The Neth. Project 1820 contained some eminently practical provisions on this subject, and defined but two faults: the great and the small. (art. 3046),

to another, a person had not given to the property or the business of that other the same care and attention that he habitually gave to his own. This is called culpa lata in concreto. (L. 32. D. Depos. (16. 2). "Nam etsi quis non ad eum modum, quem hominum natura desiderat, diligens est, nisi tamen ad suum modum curam in deposito praestat, fraude non caret; nec enim salva fide minorem iis quam suis rebus diligentiam praestat"). In either of these cases, it is difficult, in the ordinary course of affairs, to find any distinction between a negligence so grave and a formal intention of wrong-doing. Hence in matters of private law, the grave (or "heavy") fault was assimilated to malice; particularly with reference to the obligation to repair the damage 1). (L. 221. D. de V. S. (50. 16). "Magna negligentia culpa est, magna culpa dolus est." L. 1, § 1. D. si mens. fals. mod. (11. 6). "Lata culpa plane dolo comparabitur."

The slight fault (culpa levis) consisted in neglecting the care which an attentive and intelligent man of business, under ordinary circumstances, habitually gave to his own affairs 2). (Diligentia diligentis patrisfamilias.)

1) But not in cases where fraud (dolus) was a necessary element of the offence. "In lege Cornelia dolus pro facto accipitur, nec in hac lege culpa lata pro dolo accipitur." L. 7. D. ad leg. Corn. de Sic. (48. 8). Thus it may be agreed: ne culpa lata, but not ne dolus praestetur. Wächter, II, § 112, 12. It is an error that certain legislations establish a difference between fraud and fault as to the obligation to repair the damage. See, for ex., art. 1150, Code Nap., and art. 1283 Neth. Code. As to the Austrian, see Unger, § 102, note 23. Prussian Law, (Pr. L. R. Part. I, Tit. 3, § 19), recognizes a more just principle. "The consequences of a grave fault, in respect to the reparation of the damage, are exactly the same as those of fraud”.

2) L. 25. pr. in. f. D. de prob. (22. 2). “Homo diligens et studiosus paterfamilias, cujus personam incredibile est, in aliquo facile errasse." L. 65. pr. D. de usufr. (7. 1). "Debet omne quod diligens paterfamilias in sua domo facit et ipse facere." L. 14. D. de pign. act. (13. 7). L. 54. pr. D. de act. emt. (19. 1). L. 137. § 2. 3. D. de V.O (45. 1). It is evident, that, in appreciating circumstances, the judge should avail himself of the knowldege of men which he has acquired from experience; taking into account, also, the ideas, habits, and character of the people: Hasse explains this excesdingly well. He says: "Undoubtedly, in this matter, it is necessary to take into consideration, the manners and mode of life of the people; far it is upon those that are formed the normal apitude of individuals. A Turkish judge who should exact from those

In the interests of commerce and for the security of various business transactions, this degree of care was exacted from him who sought to form business relations with others in legal form. Outside of these limits, fault (blame) seemed not to exist; and injuries came within the category of accidents, for which there was no responsibility 1).

But as there was a grave fault in concreto, so was there also a slight fault in concreto; as when the Law, instead of an objective, adopted a subjective estimate of fault; exacting from the debtor, only the same care and diligence that he gave, habitually, to his own proper affairs.

In the same way, then, that in the culpa lata in concreto, the responsibility was extended, so in the culpa levis in concreto it was restricted; in this sense, that the debtor was then permitted, by exception 2), to prove, that if he had not taken all possible precau

under his jurisdiction the agility, (for example) of a Frenchman, would act as stupidly as he who should require a sick person to display the same powers as a man in full health. An abstract average of human aptitude in general, but exceeding the level of the aptitude of the people to whom it is to be applied in estimating fault, is, to my mind, a chimera; and I think that, on mature reflection, every one must be of the same opinion." See, also, Unger, 1. c., note 31.

1) It cannot be required, that, to prevent damage, extraordinary efforts should be made, nor that exceptional precautions should be taken. Diligentia, exacta diligentia and exactissima diligentia, are expressions having the same signification and the same extent. "Theory would vainly attempt to establish a general barometric scale of fault." Arndts, 16, obs. 1. Unger, 1. c., p. 243. Since, therefore, the diligentia diligentis patrisfamilias is the ordinary standard for estimating responsibility, it naturally follows, that when the Romans speak of "culpa" without any qualifying term, they must be understood to mean the culpa levis. L. 31. D. ad Aq. (9. 2.) "Culpam esse quod cum a diligente provideri poterit, non esset provisum."

2) This restriction of responsibility seems to me to be founded either upon the fact that he who is subjected to it had been called to occupy himself with the affairs of others only by necessity, (causam habuit gerendi); or that the relations established with another, instead of being casual and temporary, had assumed a permanent character; so that it was supposable that the creditor had reckoned in advance only upon the aptitude and capability which he had remarked in the debtor with refernce to his own affairs. Such seems to me the real bearing of the words, "qui parum diligentem sibi socium acquirit, de se queri debet." L. 72. D. pro soc. 1. It is as if the jurist should